The law reviews just keep on coming.
And one in a thousand articles keeps begging to be read.
We liked Nicholas Pace and William Rubenstein’s RAND Working Paper titled, “How Transparent are Class Action Outcomes?: Empirical Research on the Availability of Class Action Claims Data” (on SSRN here). Their thesis is not exactly a news flash: It’s very difficult to track what happens in a class action claims process, such as how many class members actually receive payment and, if so, how much. But it’s nice that someone looked at this empirically, even if it’s only a small sample. In the words of one (of the three) paragraphs of the abstract:
“This paper examines the extent to which claiming data are available and recommends ways to increase transparency in this area. We reviewed the official court files in a sample of 31 class action settlements and we also made direct inquiries to the judges, lawyers, and settlement administrators in another set of 57 cases. Searching through the case files and communicating with the participants, we were able to gain access to data in fewer than one of five closed cases. Despite the significant time and effort we put into the task, the final outcomes of four of five class action cases were beyond our discovery. It is not that the data are non-existent – claims administrators or parties certainly have them – it is, rather, that they are secreted away. The outcomes of publicly approved settlements lie locked in private files.”
Pace and Rubenstein were nice for empirics; Jeffrey O’Connell and Patricia Born are nice for thought-provoking. Their article, recently posted to SSRN here, is titled, “The Similar Cost and Other Advantages of an Early Offers Reform for Products Liability Claims for Personal Injury Compared to General Liability Claims Therefor.” (Actually, it’s nice for thought-provoking, but crappy for “title.” We proofread that title a few times to be sure that we’d typed it correctly there.) Anyway, these guys think this system would be a good idea:
“[A] defendant facing a personal injury claim is given the option within 180 days after a claim is filed of offering to guarantee periodic payments for a claimant’s medical expenses and wage loss beyond any other applicable coverage, plus 10 percent for attorneys’ fees. There would be no compensation for pain and suffering. The claimant in return agrees to foreclose further pursuit of a normal tort claim for both economic and non-economic losses.
“Offers could be turned down by claimants, but only in cases where the defendant’s injurious acts were the result of gross misconduct provable beyond a reasonable doubt.”
The authors think that such an “early offers plan would reduce the time it takes to pay losses by at least two years, and also greatly reduce the costs of such claims.”
Finally, for folks litigating in New York state courts, Patrick Connors has posted at SSRN “Which Party Pays the Costs of Document Disclosure?” Connors wants to maintain flexibility in deciding who will pay the cost incurred in producing electronic discovery. In the words of the second paragraph of the abstract:
“In Lipco Elec. Corp. v. ASG Consulting Corp, the New York Supreme Court concluded that ‘the party seeking discovery should incur the costs incurred in the production of discovery material.’ However, this rule limits the inherent flexibility of Article 31, and is neither supported by the text of the CPLR, nor by the case law cited in the opinion. This article respectfully submits that the disclosure process will function more efficiently and fairly without a general rule requiring the party seeking ‘documents or any things’ to bear the costs of production. Parties should be encouraged to discuss disclosure costs as early as possible, and request a protective order from the court if necessary.”
That’s this week’s trek into academia. Now it’s back to the real world for a while.